Often divorced parent will come to me and ask if he or she has grounds to change custody or to change the contact schedule of the children.
The legal burden of showing a change in circumstances such that a court has the power to change custody is not the same as when the divorce was first being litigated. During the initial proceeding all of the relevant factors are expected to be presented to the judge at trial or to have been considered at the time the parents agreed to a parenting plan. At the entry of final judgment, these facts and issue are considered “res judicata.” That means that every relevant fact was or should have been considered at the time the judgment was entered and the court cannot go back and change anything in the final judgment that is based upon those facts.
In short, the judge does not have the same discretion to rule on a custody modification as he had at the time of the original final judgment. The parent seeking to modify custody must show that there are now new circumstances that did not exist at the time of the last order and which were not reasonable foreseeable at the time of the last order. And show that this change in circumstances is sufficiently averse to the child or children that a change is warranted.
The obvious examples are: A parent is now in jail. A parent has now developed a drug or alcohol dependency. A parent has begun the engage in significant parental alienation. Something significant must have happened that was not foreseeable at the time of the last order.
It will not be sufficient to assert that the two parents continue to have communication problems involving the children. The parents did not get along before the divorce. It is not sufficient to show that there has been a remarriage and a more stable and appropriate home is now available or that a job has been lost or that income has gone up. The remarriage or loss or gain of a job are normal parts of life. Adjustments in child support can be made any time there is a change in income and the court will issue orders to enforce the prior order if one on the parents is not performing.
For better or worse, if you are seeking to change custody over the objection of the other parent, you will have what the courts recognize as an extraordinarily heavy burden of proof.